ANALYSIS on Today’s Memo: The End of DOMA?

How did this happen? Why now?

Some time ago, the American Civil Liberties Union (ACLU) filed two cases challenging DOMA in district courts in the Second Circuit. This was important because the Second Circuit (which covers New York, Connecticut and Vermont) had no binding precedent on what kind of standard of review to use for laws that discriminate on the basis of sexual orientation. While I have argued that the Supreme Court has stated in Romer v. Evans and Lawrence v. Texas that rational basis review is the appropriate standard, I have also said that (a) Lawrence's standard is pretty unclear, (b) the issue in Romer was very different than the issues posed by DOMA, and (c) the Supreme Court never held explicitly that sexual orientation discrimination must get rational basis review, rather the Court decided Romer and Lawrence this way: regardless of what standard these statutes get, they do not even pass rational basis review, so they are unconstitutional under any standard.

Since the Second Circuit never took a position on the appropriate standard, the ACLU cases offered the Administration the opportunity to argue the position it preferred. President Obama has decided that he believes that because of a history of discrimination against gays and lesbians (as well as other factors), heightened scrutiny is the best way forward.

What does heightened scrutiny mean?

In this case, heightened scrutiny likely means that a statute must further "an important government interest in a way that is substantially related to that interest." That is a tougher standard to meet than rational basis review, which just requires a statute be rationally connected to a less important interest. I say "likely" because the Administration's press release simply referred to "some level of heightened scrutiny," which could be this intermediate scrutiny or strict scrutiny. There is some precedent for applying strict scrutiny — furthering a compelling government interest in a narrowly tailored way — from some federal courts and state courts. But, I believe intermediate scrutiny is a more likely result, as a number of federal and state courts have found gays to be "quasi-suspect classes."

As a practical matter, this means that if the court adopts heightened scrutiny, it will be harder for DOMA to withstand constitutional scrutiny.

Will the Second Circuit accept heightened scrutiny?

It may, but not necessarily. While the Second Circuit has never explicitly set forth a standard of review for laws that discriminate on the basis of sexual orientation, that circuit does not exist in a vacuum. When the parties argue their positions, the court will consider those positions and look at what other courts have done. This is called "persuasive precedent" — not binding, but persuasive.

Also, the Administration is not the final word on this matter. Given that the Administration will now decline to defend DOMA, Congress now has the right and opportunity to step into the shoes of the DOJ to defend legislative enactments in court. This means that by the time briefing occurs in this case, the court will have a wide range of options.

Is DOMA dead?

No, for a few reasons.

First, this is just the Administration stating its legal position. Even if the Administration was the only party arguing in these Second Circuit cases, the court does not have to adopt the Administration's opinion.

Second, the Administration will not be the only one defending DOMA. As you can see from the press release, the DOJ has notified members of Congress of the Administration's decision not to defend DOMA. Congressional leaders are permitted to step into the shoes of the DOJ to defend duly enacted federal laws passed by Congress. While Congress is split between majority Democrats in the Senate and majority Republicans in the House, it is likely that Republicans will seek to defend DOMA and argue before the Second Circuit that rational basis review is the appropriate standard of review.

Third, even if the Second Circuit accepts heightened scrutiny and declares DOMA unconstitutional, this will set up splits between the circuits on both the constitutionality of DOMA and on the appropriate standard of review. Therefore, these cases will likely go all the way up to the Supreme Court before there is a definitive and final judicial ruling on the constitutionality of DOMA. In fact, the Supreme Court may have to hear these cases twice, remanding the case for review based on a clear standard of review and, perhaps, hearing the cases again using that standard.


  1. daftpunkydavid says

    question: what about the appeal/challenges to doma-section 3 in the 1st circuit? will the administration write new briefs reflecting the position it will take in the 2nd circuit?

  2. Sean says

    Do you think DOJ will revise its brief in Gill as a result? [Oh, Windsor v. US is ACLU (NY), Pedersen v OPM is GLAD (CT/VT/NH).]

  3. tk says

    don’t get me wrong, this is definitely a positive development, but it doesn’t make much sense. the administration is saying that it can’t make reasonable arguments in the second circuit that a rational basis standard should apply, but that it has to make those arguments in other circuits because precedent exists in those circuits indicating that rational basis is the proper standard. if they now think the only reasonable standard is some form of heightened scrutiny, why aren’t they arguing in the other circuits that it’s unreasonable to apply a rational basis standard? if they don’t it’s inconsistent. courts overrule or modify legal rules all the time; stare decisis is far from decisive of high-profile, high-stakes issues such as this.

  4. says

    Obvious immediate response to ODOJ: what about your continuing appeals of rulings that stomped all the Constitutional hot air out of the balloons keeping DADT & denial of EQUAL treatment of gays IN the military afloat?

    What’s Commander-in-Chief Gates going to say about that?

  5. riverdal says

    Will my Canadian marriage be regarded as legal when this eventuality takes place? Or will we have to be remarried in the USA? I’m an optimist.

  6. Troubletown says


    President Obama has instructed the Justice Department to cease defending the so-called “Defense of Marriage Act” in federal court.

    Please contact the White House to pledge your support to this change in policy.
    White House comment line: 202-456-1111
    Web-based form:

    Please contact your Senators and Congressmen as well as Republican House Speaker, John Boehner, to urge them NOT to independently defend this policy in federal court

    Contact House Speaker John Boehner
    Telephone: 202-225-0600
    Web-based form:
    Email :

  7. Will says

    What is very interesting is that it appears this was a carefully considered move by the President. While I don’t entirely disagree with Waldman’s explanation the legal context of “how and why” this is happening now, I think it doesn’t take account of the politics.

    This sort of major policy decision doesn’t get made on the spur of the moment. There were obviously quiet discussions going on for some months in advance at Justice and the White House. The political sequencing is telling: the Administration pursued repeal of DADT first, then dropped the hammer on DOMA. The repeal of DADT was arguably easier and (somewhat) less contentious than the repeal of DOMA. Once DADT fell, the Administration no longer had any reason to pay lip service to DOMA. Indeed, the repeal of DADT has substantially weakened DOMA. Had they pursued DOMA first or both DOMA and DADT simultaneously, it’s very likely that the outcome would have been a setback. It appears to me that all the while that Obama was being bashed over his apparent weakness on DADT and DOMA, he was playing his cards close to his chest. Once gays can serve openly in the military, how will gay servicemembers be told that they can’t marry? This is why Republicans have so strenuously resisted repealing DADT. And now the President has outfoxed them.

  8. DN says

    Is it too early to start calling Obama the first gay president?

    (And I say that as a person who fully expected Obama to throw us under the bus and ignore us because it’s-not-like-gays-will-vote-for-Republicans)

  9. says

    Obama Girls Will & Ari, PLEASE! Enough with regurgitating the myth of the magic of St. Barack seeming to do one thing while actually doing another. AKA the “He had a plan all along” bullshit.

    While better than nothing, he’s STILL going to ENFORCE it while it works through the courts FOR YEARS. And I’m also waiting for a thorough, objective legal analysis I trust to see what loopholes they might have carefully constructed. For instance, his much vaunted “ban” on “torture” contains via its application ONLY to “individuals detained in any ‘armed conflict'” such a huge loophole that any black ops team could drive a truck filled with “suspected ‘terrorists’” through it. Remember Slick Willy? We’ve got Slick Barry now.

    The closest to any INFORMED genuine credit he deserves re DADT “repeal” is that he finally got out of the way….or have you forgotten that a WEEK before the final vote Sen. Levin was saying Obama was STILL missing in action? That Barney Frank had said Obama did not WANT a repeal vote last year?

    Is it irrelevant to you that DADT is STILL needlessly in effect, that gays are still being investigated with threats of discharge, that Obama, Inc., is refusing to give gays, post actual repeal, the same levels of nondiscrimination protection IN the military blacks, women, et al., have, that the Pentagon is still hounding Dan Choi and others for money they technically only “owe” them because THEY kicked them out, that the ACLU is still suing Obama, Inc., for refusing to give gays discharged the same percentage of separation payments they automatically give straights, that this same ODOJ is expected to go back to court this week to continue its fight against the ruling in the LCR case that the ban is unconstitutional…the sustaining of which is the ONLY thing….thanks to Obama’s backing Gates’ demand last May that the PERMANENT repeal bill be gutted….that could prevent a future administration from bringing the ban back?

    Just askin’.

  10. plaintom says

    Will: I think your political anaysis is absolutely correct. Michael: Take the stick out of your ass for just one moment and be happy with this decision. This is a huge step forward.

  11. jpeckjr says

    Thank you for your insights, Ari. It seems to me the decision not to defend supports the broad legal theory that marriage is a state issue, not a federal one. Therefore, if a same-sex couple is legally married under the laws of their state, the federal govt for the purposes of providing benefits to spouses must recognize that marriage. Does any one know if that’s an argument plaintiffs are making?

    I did not know Congress could launch its own defense of a fed statute. Does this happen very often, I wonder?

    The Administration’s decision about how to handle these cases does not void any part of DOMA. Without a ruling on these cases, benefits cannot be paid without violating the statute.

    So, despite the euphoria and misleading information in many quarters about this decision, the President DID NOT declare DOMA unconstitutional. Neither the Executive Branch nor the Legislative Branch can find a statute unconstitutional. That is the role of the Judicial Branch.

  12. says

    @jpeckjr: it doesnt happen often, but it does happen. that is one of the reasons why we wanted president obama defending obama in court to begin with. that is, if he didnt, we would be stuck with a more egregious defense from conservatives in congress who adore DOMA. and you are right that the plaintiffs are arguing this is a state issue. in fact, the 10th amendment ground was one major (although not the only) basis for judge tauros decisions rejecting DOMA in the first circuit. thanks for your comment!

  13. jpeckjr says

    @Ari@5:51 p.m. I’m sure you meant “we wanted president obama defending DOMA in court to begin with” Although I suppose the president does need to defend himself from time to time.

    Thanks for the reply.

  14. just a guy says

    So, Ari, out of curiosity, do you know what’s the best precedent that supports Obama’s choice to not defend a federal law here? I think there are all kinds of people shouting about a separation of powers issue here, and I get that he’s not refusing to enforce it, only refusing to defend it in court (right?), but I think the attorney general’s letters only cite a couple of other LETTERS. Are there any cases supporting this approach? Is there a specific obvious law that a prior president decided to simply not defend? Or is Obama blazing new separation of powers ground here–and if so does that mean the next republican administration can do the same, say, perhaps for the CRA of 1964 (or something else egregious)??

    Thanks for your analysis here and on other issues, btw; it’s a nice addition to Andy’s blog.

  15. Kerry says

    Thanks Ari for your legal analysis. I was curious if the SCOTUS decision in the Westboro Baptist Church case provided any insight into their view of gays as a “quasi-suspect class”? Would the SCOTUS decision also protect the WBC if their hate messages were of a racial or religious bent?

  16. says

    @Kerry: thanks for reading and thanks for your comment. the WBC case is really not about classifications by sexual orientation or by any other distinction, so i would argue that the two concepts are not related. however, you raise a compelling point about legal policy as opposed to a legal standard. there is nothing unique about the WBCs rhetoric. its anti-gay statements are just like anti-black or anti-Semitic statements and people are free to protest using such language (there is a case called R.A.V. v. St. Paul that discusses this very topic). i think a post on the WBC case is in order, though, to flesh out some of these questions. stay tuned…